A New York woman who had moments of awareness interspersed with periods of dizziness and self-described "lack of awareness did not meet the statutory definition of physically helpless. She had the physical ability to communicate her unwillingness to participate in a sexual menage a trois.
The complainant testified to a grand jury that she went to visit the defendant, a woman who lived in a nearby building. The two began drinking alcohol, and she acknowledged downing four drinks. At the defendant's invitation, she sat on a mattress, fell back, hit her head on the floor, and became dizzy. She then "blanked out."
The woman woke to find the defendant and a male sexually fondling her. She blanked out again, only to wake and experience feelings of penetration. Shortly after, the landlord of the building walked through the open door and found the woman on the mattress. He told the grand jury that the woman did not appear alert or to know what was happening. She asked the landlord to help her He called for an ambulance and the police.
The defendant was indicted for the crimes of sodomy, sexual abuse, and sexual misconduct. The state contended that the complainant was incapable of consenting to sexual acts because she was physically helpless at the time the sexual acts occurred.
The court reviewed the grand jury evidence and determined the evidence insufficient to support the charges. The statute defining "physically helpless" required verbal or communicative helplessness on the part of the victim. The woman in this matter was never unconscious and was able to talk to her alleged assailants and the landlord. The judge wrote, "[e]vidence that a person had approximately four alcoholic drinks and banged her head on the floor while lying on a mattress there does not give rise to a reasonable inference that a person in that situation would be physically unable to communicate an unwillingness to engage in a sexual act."
Editor's Note: For a comprehensive discussion of sexual assault of chemically drugged women, see The Forensic Echo, Rapist In a Glass: The True Story of the Rohypnol Wars, Vol. 1, No. 11, Oct. 1997 pp. 4-10.
